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Lindberg v. California Dep't of Education10/31/2005
e statute itself does not establish a presumption of negligence under Evidence Code section 669, California's codification of the doctrine of `negligence per se.'" (Housley v. Godinez (1992) 4 Cal.App.4th 737, 744-745 (Housley).)
Even if the violation of a criminal statute does not define a duty or delineate a civil tort, the jury may be instructed on it if it sheds light on other issues relevant to the case. (See Housley, supra, 4 Cal.App.4th at pp. 744-745 [upholding jury instruction on criminal penalty for failure to wear a seat belt].) Here, if the jury believed Polster and others were willing to resort to criminal acts to cover up fraudulent activity by the CBO's, it tended to support Lindberg's theory that they were also able and willing to resort to illegal retaliatory measures against employees who blew the whistle about that activity.
In any event, instructional error in a civil case is cause for reversal only "`where it seems probable'" that the error "`prejudicially affected the verdict.'" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).) The instruction on Government Code section 6200 was not an incorrect statement of law, nor did it mislead the jury about any of the key issues it was called upon to decide. The evidence that certain CDE employees shredded documents, while unflattering to defendants, was a relatively minor aspect of the case. Defendants have failed to present a convincing argument that a miscarriage of justice occurred from the giving of the instruction. (Cal. Const., art. VI, ยง 13.)
C. Burden of Proof Instruction Re: Government Code Section 8547.8
At Lindberg's request and without objection from defendants, the court instructed the jury on the elements of Lindberg's cause of action for damages under Government Code section 8547.8, in pertinent part, as follows:
" ssential elements for a claim for unlawful employment retaliation pursuant to Government Code section 8547.8 are:
"1. efendant was an individual or state agency;
"2. . . . [Plaintiff] was an employee of the state agency; [ ] . . . [ ]
"3. laintiff engaged in a legally protected activity by making a protected disclosure. A protected disclosure means any good faith communication that discloses information which may evidence an improper government activity;
"4. . . . efendant subjected the plaintiff to an adverse employment action;
"5. laintiff's protected disclosure must be proved to have been a motivating factor for the defendant's adverse employment action;
"6. nce the plaintiff has demonstrated, . . . by a preponderance of the evidence, that the protected disclosure was a contributing factor in the alleged retaliation, the burden of proof then shall be on the supervisor manager, or [appointing] power to demonstrate, by clear and convincing evidence, that the alleged
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